Surviving and Thriving By Controlled Overhead

In several medical malpractice cases, defense attorneys have argued that the defendant doctor’s misdiagnosis did not really cause the injury if a subsequent treating physician has testified that the eventual treatment would have been the same even if the original diagnosis had been accurate.

That was the argument relied on by a neurologist in Broward County when an injured patient sued for the doctor’s negligence in failing to diagnose a cervical spinal cord compression by failing to order an MRI of the neck. The compression eventually caused the patient to become a quadriplegic. To deflect liability, the neurologist presented deposition testimony of a surgeon – who subsequently treated the patient – who said he would not have performed neck surgery even if the neurologist had ordered an MRI of the neck.


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The neurologist argued that the surgeon’s testimony made it impossible for the plaintiff to prove that the neurologist’s negligence was a cause of harm to the patient because the patient had not proven that the surgeon would have operated on the neck if the neurologist had done the MRI. The jury accepted that argument, finding that the neurologist’s negligence was not a legal cause of harm to the patient. The trial court entered a judgment in favor of the neurologist.

The patient appealed to the Fourth DCA, which affirmed the judgment. However, the Fourth DCA’s decision conflicted with decisions of the Third DCA and Fifth DCA, which had held that a physician’s negligence cannot be defended on the basis of what a subsequent treating physician allegedly would have done had the first physician not acted negligently.

Based on that conflict between the districts, the patient sought review by the Florida Supreme Court, which quashed the Fourth DCA’s decision and held that a physician cannot be insulated from liability for negligence by presenting a subsequent treating physician’s testimony that adequate care by the defendant physician would not have altered the subsequent care.


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In Saunders v. Dickens, 39 Fla. L. Weekly S 494 (Fla. July 10, 2014) (not final until disposition of a motion for rehearing), the Florida Supreme Court decided that the defendant doctor should not have placed a burden on the patient to prove a negative (“to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to [the surgeon’s] testimony and irrespective of the standard of care for the defendant physician”). Rather, “the burden on the plaintiff with regard to causation is only to establish that adequate care by the [defendant] physician more likely than not would have avoided the plaintiff ’s injury.”

The Florida Supreme Court held that the “testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care . . . will not insulate a defendant physician from liability for his or her own negligence.” The Supreme Court said such evidence is irrelevant and inadmissible. After all, the Florida Supreme Court held, “the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician who is a defendant in a medical malpractice action;” and “it is not only the final physician, but rather each treating physician who must act in a reasonably prudent manner.”

The Supreme Court’s decision will likely be cited in several future appeals as the district courts apply the holding to other medical malpractice cases. The Law Offices of Robin Bresky is available to discuss these matters.


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